§ 5.20 p.m.
§ Consideration of amendments on Report resumed.
§ [Amendment 15 not moved.]201
Lord Elton moved Amendment No. 16:
Page 10, line 20, at end insert—
("(1A) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.").
The noble Lord said: My Lords, in moving Amendment No. 16 I should like to speak to a number of other amendments. It is a large group. I hope that when I have described it it will be clear to your Lordships that it is not as fundamental or as formidable as it appears on the Marshalled List. The group comprises, as well as Amendment No. 16, Amendments Nos. 33, 35 to 40 inclusive, 42, 44 to 49 inclusive, 51 and 52, and 178 to 180 inclusive.
Amendment No. 33: Clause 18, page 17, line 9, at end insert—
("(1A) A constable may seize and retain anything for which he may search under subsection (1) above.").
Amendments Nos. 35 to 40: Clause 19, page 18, line 9, leave out subsections (2) and (3).
Page 18, line 21, leave out ("any article to which this subsection applies") and insert ("anything which is on the premises")
line 27, leave out ("any article to which this subsection applies") and insert ("anything which is on the premises")
line 33, leave out ("to which this subsection applies") and insert ("(which is contained in a computer and is accessible from the premises")
line 35, after ("away") insert ("and in which it is visible and legible")
line 42, at end insert—
("(6A) The powers conferred by this section are in addition to any power otherwise conferred.
(6B) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for suspecting to be subject to legal privilege.").
Amendment No. 42: After Clause 19. insert the following new clause:
("Extension of powers of seizure to computerised information.
.—(1) Every power of seizure which is conferred by an enactment to which this section applies on a constable who has entered premises in the exercise of a power conferred by an enactment shall be construed as including a power to require any information contained in a computer and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible.
(2) This section applies—
- (a) to any enactment contained in an Act passed before this Act;
- (b) to sections 8 and 18 above;
- (c) to paragraph 12A of Schedule 1 to this Act; and
- (d) to any enactment contained in an Act passed after this Act.").
Amendments Nos. 44 to 49: Clause 20, page 19, line 11, leave out from ("anything") to first ("the") in line 16 and insert ("which—
- (a) has been seized by a constable; and
- (b) is retained by the police for the purpose of investigating an offence,
is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person").
Page 19, line 18, leave out subsection (2).
line 22, leave out from ("of") to ("immediately") in line 24 and insert ("any such thing is made to the officer in charge of the investigation by a person who had custody or control of the thing").
line 25, leave out from ("person") to end of line 26.
line 32, at end insert—
("(3A) A constable may also photograph or copy, or have photographed or copied, anything which he has power to seize, without a request being made under subsection (3) above.").
line 40, after ("investigation") insert ("for the purposes of which it was seized").
Amendments Nos..51 and 52: Clause 21, page 20, line I, leave out ("an article which has been seized under section 19 above") and insert ("anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section [Extension of powers of seizure to computerised information] above").202
Page 20, line 6, leave out ("an article") and insert ("anything seized for the purposes of a criminal investigation").
Amendments Nos. 178 to 180: Schedule 1, page 105, line 4, at end insert ("and in which it is visible and legible").
Page 105, leave out lines 5 to 11 and insert—
("6. For the purposes of sections 20 and 21 above material produced in pursuance of an order under paragraph 4(a) above shall be treated as if it were material seized by a constable.").
Page 106, line 7, at end insert—
("12A. A constable may seize and retain anything for which a search has been authorised under paragraph 12 above.").
All the amendments in this large group flow in one way or another from Clause 19 and in particular from the new subsection (6A) which is proposed in Amendment No. 40. Although they sound formidable they do not represent any change in policy. After careful thought we have come to the conclusion that Clause 19 as drafted does not do what the Notes on Clauses advertise that it does and what we have all along intended that it should do. The summary of the Notes on Clauses starts by saying that:
Clause 19 makes provision for the seizure of articles in the course of a search. Where the search is under a warrant then the articles specified in the warrant may be seized under the authority of the warrant; but there is no statutory provision governing what may lawfully be seized where the search does not take place under the authority of a warrant or where there is a warrant but other articles constituting the proceeds or evidence of offences are discovered".
§ That concludes the quotation from the Notes on Clauses.
§ Clause 19 was intended to place the existing common law governing the seizure of such articles as set out in Garfinkel v. Metropolitan Police Commissioner on a statutory basis. In other words, it was intended to regulate the seizure of adventitious discoveries.
§ Some of the important provisions in Clause 19, however, are intended to apply to any seizure by the police and not only to adventitious seizure. For example, subsections (2) and (3) prohibit the seizure of items subject to legal privilege. But they were intended to prohibit not just the seizure of such items found in the course of a search for something else; they were intended to ensure that the police could in no circumstances obtain access to such items, whether under the authority of a search warrant or not. Likewise the provisions of Clauses 20 and 21, which set out new safeguards for those from whom property has been seized, should be available in the case where an article named in a warrant has been seized just as much as in the case where it is found adventitiously.
§ So I have to say that Clause 19 as drafted is a bit of a muddle. The first step in clearing it up is to confine the scope of the clause to what is found adventitiously. This is effected by the new subsection (6A) to which I have already referred, because there is no statutory power for seizure of adventitious finds.
§ The need for such a clear distinction is exemplified by the case of a warrant under the Theft Act 1968. If we suppose that a Rembrandt has been stolen and the police receive information that it is in the hands of a wealthy collector, they obtain a search warrant under the 1968 Act to seize and recover it. They enter his private gallery and find it. Now it may be that the police have no reason to believe that the collector would destroy or damage it, but they clearly need to be able to seize it under the authority of the warrant, so 203 that it can be returned to the lawful owner. As the Bill stands, however, Clause 19(4) only provides them with the power to seize the picture if they believe, in subsection (a), it has been obtained by criminal means and under subsection (4)(b) if it is necessary to prevent it from being concealed, lost, altered or destroyed. There could be no such risk and they would then lack a power to seize the picture. Clause 19, therefore, cannot be regarded as an umbrella power of seizure which will replace all existing powers.
§ Once we accept this then all the other amendments can be seen as consequential. I will take them in clause order. The first makes good the deficiency by providing that a warrant under Clause 8 is not just a warrant to enter and search but is also a warrant to seize what is specified in the warrant. Existing search warrant provisions, such as Section 26 of the Theft Act 1968, to which I have already referred, empower the police to enter, search and seize. Clause 8 should clearly follow this pattern. The whole object of the clause is to ensure that the police can obtain evidence of serious crime and once a magistrate has been sufficiently satisfied of the need for this to issue a warrant under Clause 8, then the additional provisions of Clause 19 should not supervene. The magistrate's authority alone should be sufficient to permit the seizure of what he has specified in the warrant.
§ Exactly the same point arises in relation to a warrant issued by a circuit judge under Paragraph 12 of Schedule 1: hence Amendment No. 180. A similar point also arises in relation to Clause 18. If a person has been arrested for an arrestable offence, such as burglary, and there are reasonable grounds for suspecting that evidence of the offence is at his house, then the power to search his house on the authority of an inspector to look for the evidence should include the power to seize it. In practice the conditions in Clause 19(4) and (5) are likely to be amply satisfied in such a case. But even supposing that they are not—let us say that the arrested person lives alone and the proceeds of the burglary will stay in his attic undisturbed by anyone—the police should still, I suggest, as a matter of plain common sense be able to seize them.
§ Coming now to Clause 19 itself, I ought to say a brief word to explain Amendment No. 39 to subsection (6). Subsection (6) provides for information in a computer to be produced in a form in which it can be taken away. It is, however, undesirable that this requirement should be capable of fulfilment by handing the constable a floppy disc which he might be quite unable to use. Subsection (6) was intended to provide for the information to be produced as a print-out or something like it, and Amendment No. 39 so provides. It follows the precedent of the new subsection (1A) added to Section 8 of the Local Land Charges Act 1975 by Section 34 of the Local Government (Miscellaneous Provisions) Act 1982.
§ The other amendments to Clause 19 are drafting, apart from new subsection (6B) which ensures that no power of seizure. whether under warrant or otherwise, includes the power to seize anything reasonably suspected of being an item subject to legal privilege.
§ The new clause after Clause 19 is necessary to take account of the clarification of the scope of Clause 19 204 limiting it to adventitious seizure. The clause is necessary to extend provisions equivalent to subsection (6) to evidence that is seized not adventitiously but under warrant or under specific statutory authority.
§ The remaining amendments are all consequential and ensure that the provisions which provide the possessors of things seized by the police with access to them and limit the powers of the police to keep them. which are in Clause 20 and 21, apply to all articles seized by the police, whether seized under the authority of Clause 19, the authority of a search warrant, or some other authority.
§ I am sorry to have delayed your Lordships for so long in explaining how we are sorting out the delicate distinctions between evidence seized in different ways. I fear that I shall have to ask your Lordships to bear with me again at Third Reading when I hope to propose similar safeguards as to access and copying in cases of articles seized after stop and search. Your Lordships have agreed the principles. We have now put them into statutory language which I hope is more effective than that in which it was before. I beg to move.
§ Lord Wigoder
My Lords, there is just one matter of, in a sense, verbal quibbling. Concerning the last line of Amendment No. 40, to which the noble Lord referred, does one "suspect" something of being subject to legal privilege? Is not the word "suspect" rather inappropriate as giving the impression that something is wrong? Would it not be better to have "thinking" rather than "suspecting" that it is subject to legal privilege?
§ Lord Elton
Or indeed, "believing", my Lords; the noble Lord has a delicate ear. I will see whether it may be possible to satisfy that point at Third Reading.
§ Lord Elwyn-Jones
My Lords, is not the noble Lord comforted by the fact that we have two to three months to think about these additions to the Bill?
§ Lord Elton
My Lords, that is a thought with which I have been comforting myself more frequently with every day and every hour that has passed on this Bill.
§ Lord Airedale
My Lords, I wonder why it is necessary in Amendment No. 39 to say "visible" as well as "legible", unless we are talking about braille.
§ Lord Elton
My Lords, I do not know about braille, which we might be talking about; but there are also computer-based pictures. Only this morning I was seeing evidence of the way in which computers can now be used to issue plans of buildings from the specifications put into them in written form. Computers produce things which may be of great significance which do not emerge as writing and which a constable needs to be able to understand. It may come out as magnetic tape.
§ [Amendment No. 17 not moved.]205
§ Clause 9 [Special provisions as to access]:
§ [Amendment No. 18 not moved.]
Lord Renton moved Amendment No. 19:
Page 11, line 1, leave out subsection (2).
§ The noble Lord said: My Lords, this is a paving amendment, which will, I hope, give my noble friend Lord Elton an opportunity to explain why the Government have used this rather obscure method to achieve their object. I hope that I may make a plea, however belated, for greater simplicity in the expression of these important provisions of the Bill. By Jove! we have made a meal of it. Consider, my Lords, the relative simplicity of the present procedure whereby a police officer can go to a magistrate and ask for a warrant. The magistrate is given a very wide discretion by the statute and he uses his own experience and common sense and grants, or refuses, the warrant. If, in the course of the search, the constable finds evidence which it is proposed to use at the trial, the trial judge can decide whether or not that evidence should be admitted. But really, the complexity of these provisions seems to me to be most unfortunate and, to a great extent, unnecessary.
§ Let me turn specifically to this amendment. Clause 9(2) in effect repeals a large quantity of unmentioned, unlisted, statutory provisions, some of them even in local Acts of Parliament, spread over I do not know how long; perhaps the last 200 years. May I say, in passing, that the method used is the same as that used in Clause 25, to which I think I referred at the Committee stage during the debate on clause stand part. One would need many volumes of statutes and a sophisticated system of extraction to find out which provisions have been repealed.
§ However, having said that, although it would be impossible for the constable to know whether there had been a repeal of any of those provisions, subsection (2) appears to be—and I stress that it is only my understanding that it appears to be—a paving provision for paragraph 3(b) of Schedule 1, which is on page 104. In order to explain the effect of Clause 9(2), I wonder whether I may refer to the first schedule. We know, because it has already been mentioned by my noble friend Lord Campbell of Alloway, that this schedule enables an application to be made by a constable to a circuit judge. It then sets out the conditions—the so-called access conditions—under which the judge may make an order.
Paragraph 2 deals with the first set of access conditions, and paragraph 3 deals with the second set; and that is what I am coming to.
The second set of access conditions is fulfilled
it says in line 30,
if … there are reasonable grounds for believing that there is excluded material or special procedural material on premises specified in the application".
So far, clear enough!
Then we come to sub-paragraph (b), which says:
but for section 9(2) above a search of the premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule".
§ But we know from subsection (2) that such enactments have been repealed. So we are in the strange position that a circuit judge is being asked to decide a case on 206 the hypothesis that it could have been allowed under provisions which are being repealed. I find that a very strange situation.
§ It may be that there is something lacking in my mentality which prevents me from understanding it. But we must remember that it is not only circuit judges who will have to understand this. It will have to be understood also by police officers of all ranks, people whose premises may be searched, and all the people involved, in humble ways and in more elevated ways (such as being circuit judges) in the judicial process.
§ I do not want to make too much of a meal of this. I hope that I have said enough to point out that if there are several different ways of legislating—one relatively clear and simple, and another making it as elaborate as the imagination of a genius can make it—then it seems that the latter way has been chosen, I think unhappily. I beg to move
§ Lord Mishcon
My Lords, I believe it is unnecessary to make a long speech after the noble Lord, Lord Renton, has spoken. Without any doubt at all, both this clause and, as he mentioned, Clause 25 (to which I was going to refer when we came to it) are so abstruse that it makes it completely nonsensical—if I may use that language—to legislate in this form. The noble Lord, Lord Renton, may be right or wrong in his interpretation and I, too, have followed him into Schedule I can only say that if he be wrong, there will be many lawyers who will he wrong with him. It is absolutely vital that we get this provision right in clear and simple language.
The noble Lord, Lord Renton—and I am quoting him with respect when I say this—has often appealed to this House for legislation to be in simple terms. When we are repealing statutes may we just repeal them without circumventing the repeal by complicated language which leaves one not really knowing whether or not there is a repeal? If this legislation is to be repealed, let it be set out in detail with the knowledge that those Acts have gone and, their having gone, let us not refer to them in the schedule, as appears to be the case.
§ Lord Denning
My Lords, perhaps I may add a few words in support of the amendment. I shall take an illustration. We had the Rossminster case, where a statute gave power to seize material which was liable to show a tax fraud. But there is nothing in that about any exception, about legal privilege or excluded material, or anything like that. What is to happen to that provision? It will remain on the statute book; and there are on the statute book dozens of provisions which enable a search warrant to be granted without those exceptions included. They will not be struck out of this statute. Wide terms will be in the statute still. We shall not have a note against it marked "Repealed". There ought to be a note against it, if you are going to repeal anything in a statute. This obscurity in drafting is much to be deplored. I should have thought, as my noble friend Lord Renton has just said, that in a way this exclusion could be put into Schedule 1 in simple language; and that would be enough. At all events, I join in the plea for simplicity in legislation.
§ 5.40 p.m.
§ Lord Campbell of Alloway
My Lords, may I very briefly support everything that has been said by every noble Lord on each side of the House? If "enactment other than this Schedule" in paragraph 3(b) of the first schedule may mean Clause 8(1)(d), why does it not say so? This is really a dog's dinner of a draft and it is an impossibility to find one's way around it with any ease or simplicity. I shall not detain your Lordships with the sheer injustice and impracticability as to how it will operate on journalistic material because that has been pointed out. But it still exists; it still remains; and it has not been met. I support wholeheartedly the plea of my noble friend Lord Renton, with all the authority that he commands, for a fair and reasonable measure of clarity in the drafting of this schedule.
§ Lord Elton
My Lords, my noble friend has put his finger on an interesting part of the Bill. Subsection (2) is an important new safeguard in the law governing police powers of search. At present, if a statute confers power on a magistrate to issue a search warrant then he may issue it, if satisfied by the police evidence, irrespective of the circumstances in which the object of the warrant is held. In the case of a Theft Act warrant, for example. it does not matter whether the article is a stolen gold bar hidden in the garage of the suspected thief or a stolen document held in good faith on behalf of a client by a wholly respectable firm of solicitors or accountants. In either case the law provides only for the issue of a warrant to enter, search and seize. However, having invented the new machinery in Schedule 1 to which I shall come in a moment under which an order to produce may be issued in place of a search warrant in the case of evidence held in confidence, we concluded that it would be only consistent to apply this new machinery to existing search warrant powers. Hence Clause 9(2).
It is perfectly true that Clause 9(2) stands on its own: the schedules to the Bill do not specify the enactments which it modifies. This is not simply the draftsman adopting a slip-shod approach to legislation: it is the simplest and most economical way of proceeding, and a way which is, I believe, both well-precedented and safe. I wonder whether we have too freely used the term "repeal", because your Lordships have spoken as though you believe that there were precise passages in statutes which could be excised with a scalpel or struck out with a felt-tip pen, and that what was required was for somebody to do this in the statute so that other people should not have to do it, as it were, in the offices of solicitors and others who want to know how the law stands. But, my Lords, if you look at Clause 9(2), you will find that it does in fact exercise a wide range of repeals—indeed it repeals everything but only as respects certain kinds of material. The sorts of material are legally privileged or excluded or special procedure material.
If there is a power on the statute book to seize a certain kind of evidential material, that is not affected by this so-called repeal unless that material is legally privileged or excluded or special procedure material. So what we are talking about is subjecting material which is already on the statute book and subject to these powers to a test. We are putting into the minds of the people using the statute the test which they 208 should apply. That test appears in Schedule 1 at paragraph 3(b). What the circuit judge is there asked to consider is whether the material for which he is being asked to issue a warrant would have been available for a magistrates' warrant had it not been for the existence of this test. He is being asked to apply the test. I am a layman and perhaps I have over-simplified the matter because I am a layman, but I confess that it does seem that this concept is relatively easy for a layman to follow, and therefore, I should have thought for a circuit judge to follow.
Very soon after the Bill is on the statute book, the police, magistrates, lawyers and others who are directly concerned with these matters will become familiar with Clause 9(2). They will know that they will have to read existing enactments with Clause 9(2) in mind to see whether the provisions there should be subject to this test. If the question of a search warrant for stolen goods comes up, then the application will lie under Schedule 1 of this Bill and not under the Theft Act 1968 if excluded or special procedure material is involved. The Bill covers the whole range of police investigative procedures, and is so central to the everyday work of the police, that I do not think that Clause 9(2) will remain an obscure provision in a far-away statute of which the police or those who work with or near to them know little. Certainly the extensive training programme now in preparation will ensure that this could not in any case be so. Of course I accept one of the principles of my noble friend as correct and it would be possible for each statute modified by Clause 9 to be amended in context. But it would be a formidable undertaking, particularly since Subsection (2) extends also to local Acts. It would consume a great deal of drafting time, and in view of the way I have described that it will work, I very much doubt whether that time would be usefully expended. Such an undertaking would in practice assist only those who did not have occasion to make, adjudge or advise on police applications for access to special procedure or excluded material.
I very much sympathise with my noble friend's concern to maintain the highest possible standards in the drafting of legislation. I do not say this lightly because I came on to your Lordship's Benches not long before the admirable report of the noble Lord, which I endeavoured to follow in opposition by the use of Keeling schedules to everybody's amazement but I think also to their enlightenment. I rather regret that the practice seems to have diminished somewhat since then. I am very much in tune with my noble friend in looking for simplicity in drafting and clarity in legislation but what we are putting here is a test which will be familar to those who have to use it and will not give rise to the confusion, doubt or anxiety which my noble friend understandably suggested that it might.
§ Lord Kilmany
My Lords. with great humility and as no other than a layman, may I just say a word because I have listened with the greatest care to what the noble and learned Lord, Lord Denning has said; I have listened to what my noble friend Lord Renton has said; and I have listened to what the noble Lord, Lord Mishcon, has said from the Opposition Front Bench; I have also listened to what my noble friend Lord Galloway said. It seems to me—and I say this to the Minister—that their four speeches added up to 209 sense, and with great apology to the Minister, it did not seem to me that his last contribution added up nearly as sensibly as did theirs.
§ Lord Donaldson of Kingsbridge
My Lords, the noble Lord, Lord Kilmany, who has just spoken, saves me from saying exactly the same thing again. As laymen, when lawyers cannot understand something I know that I cannot and I am perfectly clear that I do not. I think our original request to the Government in Committee to scrap Clauses 8 to 14, to take them away and to think again becomes more and more an illuminating thought the longer that we think about it. I believe that, if the noble Lord the Minister is to keep the respect of this House, he has to take this away and not leave it as it is.
§ Lord Harmar-Nicholls
My Lords, could I re-echo the point that has just been made and was made by my noble friend. Does my noble friend the Minister realise the dilemma of ordinary Members of your Lordships' House when he makes a situation such as this? Here we have most eminent lawyers, who really are expert in their field—and one has in mind particularly the noble and learned Lord, Lord Denning—putting a point of view very clearly and very forcefully. Then my noble friend with his brief, I have no doubt well supported outside the Chamber, gives a completely opposite point of view in terms of what these words really mean. I have no doubt that my noble friend on this occasion will not be pushing this to a vote, but I would like my noble friend the Minister to bear in mind that it is stretching one's loyalty, if one can put it like that, to the very extreme when we are asked to accept his explanation—put, as it always is, with courtesy and clarity from his point of view—but it goes so much against the practised and experienced voices that we heard exposing another point of view entirely.
§ Lord Renton
My Lords, first of all, let me thank those three noble Lords who are experienced lawyers and the three laymen, using their common sense, who have supported me in this amendment. I really am very surprised at the reply which we have had from my noble friend. What he is saying is that, although none of us can understand it, he has been persuaded by the ammunition which he has been given, and which he claims to have chewed, and he can understand it. And he says in effect that if there is any difficulty it will be overcome by police training. That I find an over-sanguine expression.
I must say that I think we are in a very great difficulty here. In spite of bonds of loyalty, I would have been inclined to divide the House on this and I think that we might very well, in view of the support we have had, have carried this amendment. But I said when I moved it that it was a probing amendment—a peg on which to hang a plea to the Government—and it so happens that if technically we merely carried this amendment it would create even greater nonsense in the Bill than there is already; and far be it from me, as a loyal supporter of the Government and a former 210 Home Office Minister, to place the Government in that position on this Bill. But my noble friend wishes me to give way?
§ Lord Elton
My Lords, what is the decorous moment at which to interrupt a speech in order to seek to divert its direction? With the leave of your Lordships, I think I ought to respond to the tone of the criticism which I have received, and which is summed up by the words "over-sanguine" which my noble friend used. I would not wish to appear over-sanguine. What has so far happened is that the noble and learned Lord, and noble and wise Lords all over the House, have said that they cannot understand what is in the Bill and others will find it equally difficult. I have replied that I understand, I think, quite well what is in the Bill and I gave an explanation to your Lordships, but your Lordships have not accepted it. That may be because of a fault in my explanation or it may be because of a fault in what I was explaining.
Because I do not wish to suffer the charge of "over-sanguinity" (if that is the right word) lightly, I would say that I would not rely simply on police training to bring this into the focus of the official mind. But since we have a long and, I hope, pleasurable Recess before Third Reading, I will look very carefully at this drafting in the meantime. However, as always, I would say that in giving the undertaking I cannot give a commitment to come back with anything other than what is in the Bill; but I will have had the opportunity, and my right honourable friends and my learned friends will have had the chance, to read the strictures that have been made by the noble and learned Lord and others upon what we now propose to put on the statute book, and to see whether it is in fact possible to clarify it or whether in fact it is as clear as, in my bones, I suspect it may be.
§ Lord Wigoder
My Lords, may I ask the noble Lord whether the undertaking, which has been so generously given, extends also to the various other clauses surrounding this particular one which we have been debating in such obscurity this afternoon?
§ Lord Elton
My Lords, if we come to make a decision on one part of the Bill, obviously other parts of it will be consequentially affected. So in so far as our review of what the noble Lord has brought as a dificulty to us—and the noble Lord, Lord Wigoder, obviously supports him in this—gives rise to consequential complications, then of course we would be proposing consequential simplification.
§ Lord Mishcon
My Lords, before the noble Lord sits down and with the leave of the House, because the noble Lord the Minister is being so constructive, may I merely point out to him—and I hope that my noble friend Lord Renton will agree with this—that the complication is not only in the way in which this has been presented. Does the noble Lord realise that before one has to decide whether or not a clause ceases to have effect one has to find the definition of "excluded material", which is new to this Bill, see whether it applies to an old Act, be it a local or a public Act, and then do exactly the same in regard to special procedure material? That is a complicated exercise, 211 which I am sure the noble Lord the Minister would not expect a circuit judge to go through, and, if he really felt that police officers are capable of that, I would only say that they themselves deserve to be promoted to the Bench forthwith.
§ Lord Renton
My Lords, I was in the middle of my speech in reply to this short debate. May I thank my noble friend for the second bite that he has given to this rather tough cherry. I welcome his undertaking to consider not only subsection (2) of Clause 9 and the first schedule to the Bill but, as has been mentioned, this whole collection of complicated but very important provisions which are contained in Clauses 8 to 14. That is a very great advance, and I am very grateful for the support of those noble Lords whose persuasion has led the Government to that view; and, while thanking my noble friend and them, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Clause 11 [Meaning of "excluded material]
§ 5.57 p.m.
Lord Hemingford moved Amendment No. 21:
Page 12, line 1, after ("journalistic") insert ("or literary")
The noble Lord said: My Lords, in seeking to move this amendment, with the permission of the House, I should like to speak also to Amendments Nos. 22 to 30, which are concerned with the same subject.
Amendment No. 22: Page 12, line 5, after ("journalistic") insert ("or literary").
Amendment No. 23: Page 12, line 13, after ("journalistic") insert ("or literary").
Amendment No. 24:Page 12, line 20, after ("journalism") insert ("broadcasting or authorship").
Amendment No. 25:Clause 13, page 12, line 35, after ("journalistic") insert ("or literary").
Amendment No. 26: Page 12, line 36, after ("journalism") insert ("broadcasting or authorship.").
Amendment No. 27: Page 12, line 37, after ("journalistic") insert ("or literary").
Amendment No. 28: Page 12, line 39, after ("journalism") insert ("broadcasting or authorship.").
Amendment No. 29: Page 12, line 41, after ("journalism") insert ("broadcasting or authorship.").
Amendment No. 30: Clause 14, page 13, line 3, after ("journalistic") insert ("or literary").
§ The effect of these amendments would be to extend to all forms of broadcasting and to the authors of books the same kind of privilege against search which is provided in respect of material acquired or created for the purposes of journalism. I believe that it would be quite wrong to make a distinction between journalism and these other disciplines. I would, of course, prefer that there should be no reference to all these kinds of material for reasons of principle, which we have already aired to some extent, and for reasons of the complexity, which the noble Lord, Lord Campbell of Alloway, mentioned earlier. I hope that this whole subject will be included in the review which the noble Lord the Minister has undertaken to make.
In the Home Office's briefing on the Bill, the clauses referring to journalism are described as,
taking account of the importance for a free press of the ability to check sources".
The guide correctly points out that the law already recognises the sensitivity of such sources, mostly in the contempt of court Act 1980. But the language of that Act is much broader than the language of the Bill which we are now considering, because Section 10 of the contempt of court Act provides—and I quote:
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime".
§ The key words here are "person" and "publication for which he is responsible", because they do not introduce any artificial distinction between different kinds of publication and anybody who is responsible for any kind of publication is entitled to the same treatment. But the language in this Bill is far more narrowly drawn, because it requires a definition of "journalism".
§ Your Lordships are already aware that a majority of senior editors in the country fear that it will also lead to a definition of "journalist", which the Government have already said they are opposed to in another context. But leaving that argument aside, what is the justice of providing the author of material which can be described as "journalism" with greater protection than the author of other literary or broadcast material? If I write an article in a newspaper which relies upon confidential sources, in what way am I different from someone writing a book which relies upon confidential sources? In all justice, I do not believe there can be a difference and these amendments would remove that injustice.
§ They would also remove one of the principal objections which editors have to the present Bill—namely, that it puts journalists or journalism into a special category as against the ordinary citizen. Journalism is not a profession from which people can be struck off or in which they are subject to rules and regulations, and it never should become like that. Nor are those who practise it, whether for a living or otherwise, part of an elite.
§ At a time of considerable tension in the country, it would be absolutely fatal if journalism were seen to be, or could reasonably be described as being, part of the establishment enjoying privileges in Parliament and Government which are not available to other people. It is a question of credibility and I do not believe that this House, whatever its dislike of individual newspapers may be, would wish to do something which could impair the credibility of the press as a whole.
§ I believe that this aspect of the controversy has been given insufficient attention by the Government, who have concentrated on ingenious but legalistic arguments designed, I think, to obscure the important principles which the overwhelming majority of senior editors would like to assert. I do not think that a fair-minded observer would be very happy with the way in which the Government have handled this issue in our debates. I believe that the opponents of these clauses relating to journalism have won the argument and it is extremely disappointing that the noble Lord the Minister has been playing such a dead bat on the issue.
§ I hope that he will reconsider the whole question when he re-examines these clauses, because it may be 213 that the language I have chosen here is not the most felicitous for the purpose. I am sure that if he put his mind to it the noble Lord the Minister could come up with a better way of achieving what we want to do. It may be, therefore, that I should not press this amendment but should put it forward in the same spirit that the noble Lord, Lord Renton, put forward his previous amendment. My Lords, I beg to move.
§ Lord Denning
My Lords, may I say one word on the wording of this amendment? "Journalism" is bad enough. To extend it to "literary" covers not only journalistic work, book reviews and articles, but it covers all your letters of any kind. In our law as to copyright, a literary work comprehends anything—a few sentences, a few letters in a private work and the like. "Literary" is so wide that, in a way, it is not to be accepted, even if "journalism" is to be accepted. I would oppose the amendment.
§ Lord Campbell of Alloway
My Lords, I cannot support these amendments for the very straight forward, simple reason given by the noble and learned Lord, Lord Denning. But these amendments serve a valid purpose, because they draw attention to a most unsatisfactory aspect of this Bill which I ventured to raise on Second Reading—the special status of journalistic material. At Committee stage, in a thin. House at 11 in the evening, my Amendment No. 61 to seek to excise this exclusion of journalistic material from the powers of entry, search and seizure under Part II of the Bill was defeated by a narrow margin of five votes, notwithstanding that nine noble Lords, including the noble and learned Lord, Lord Denning, supported the amendment and no noble Lord, save my noble friend the Minister, opposed the amendment.
On Second Reading, my noble friend the Minister said at col. 478 of the Official Report of 4th June that he would be ready to hear further views, that he would keep an open mind and that he would certainly not wish to impose protection which was not wanted. Yet at Committee stage that is precisely what he did, contrary to the consensus of the Chamber which exploded any justification for the concept of according such special status.
I have spoken twice today and I shall speak no more on this subject of the practical problems affecting the exclusion of journalistic material. This problem, which could not have arisen if Amendment No. 61 had been accepted, is all part of the generous undertaking which has been given by my noble friend the Minister, because it falls within the ambit of those clauses. I merely seek confirmation from my noble friend the Minister that all this question of journalistic material, the question of the definition of excluded material and special procedure material, in context with journalistic material and with this run of clauses, will receive open consideration in accordance with the undertaking that has been given. I say this because my noble friend Lord Thomas of Swynnerton raised this question at Committee stage and my noble friend the Minister said in reply that it matters not what people do; it matters what they produce. Against that concept, I would ask my noble friend to extend his 214 undertaking to cover this matter. I am afraid that in no circumstances could I possibly support this amendment.
§ Lord Ardwick
My Lords, this is the third time that the noble Lords, Lord Campbell and Lord Hemingford, and I have spoken on this aspect of the Bill and we seem to have made no progress at all. For some reason, we are unable to get through. This is a last despairing, rather ingenious, attempt to get the Government to understand what we are trying to say. I am not going to say anything about the means employed today by my noble and professional colleague Lord Hemingford, but I vigorously support his ends.
We are not criticising the Government. This is not one of the attempts to defeat the Government which have been so prevalent recently. We are criticising their journalistic advisers. Some journalist authorities persuaded the Government to give journalists a privilege. These people sought the immediate advantages but they failed to see the long-term danger, as the noble Lord, Lord Hemingford pointed out, of putting journalists into a privileged class. The freedom of the press has always meant the freedom of all citizens, not just the freedom of those who work for newspapers. The press need facilities. They need ringside seats at almost everything that goes on in the country. But we must not confuse facilities, as do those who support the Bill, with legal privileges. If we receive privileges, in the end we shall have to pay for them with obligations. Then bang goes freedom.
The majority of journalists do not want this privilege. The Government are making us a gift but it is an unwelcome gift, made with the best of intentions. It is about as welcome as a steak to a vegetarian or a box of Black Magic chocolates to a weight watcher. There is a still better analogy. What every woman knows is that if she were to accept the gift of a mink coat from a new gentleman friend it would change their relationship, whatever platonic protestation he might make. She would feel under an obligation. She would find it harder to keep him at arm's length. She would lose her freedom to rebuke the giver and the world might assume that there was closer intimacy than the one which actually existed. That is why every woman knows that she must decline such a gift. These clauses are the mink coat offered by Government to newspaper men. The gift may give us immediate warmth and comfort but in the end it is going to compromise us. That is why today once more we beg the Government to take back their gift, pack it in mothballs and put it in a deep, dark, inaccessible cupboard.
§ 6.12 p.m.
§ Lord Elton
My Lords, Clause 8 of the Bill gives to the police specific powers to search for evidence of an arrestable offence. The subsequent clauses provide that some classes of evidence shall never be available for this kind of search and that others shall be available only on the authority of a circuit judge. Journalistic material held in confidence falls into the first of these categories and other journalistic material falls into the second.
In Committee, the noble Lord, Lord Hemingford, and many others sought to persuade your Lordships to 215 reduce the areas protected from the search powers, or to which they were given only strictly controlled access, by removing journalistic material altogether. On that tack they failed to gain a majority. They are now coming up to the boil again, as it were, on the opposite tack: seeking to expand the area of protection very considerably indeed. My noble friend Lord Campbell of Alloway spoke not to this amendment but to an amendment which was defeated in Committee and which is no longer on the Marshalled List. My undertaking to my noble friend Lord Renton was quite clear. I hope that when both of my noble friends read Hansard tomorrow they will see exactly to what it extends.
As to how journalistic material came to be in the Bill at all, I spoke at length in Committee. I need only remind your Lordships that it was put there as a result of the very strenuous insistence of the journalistic profession itself. What matters now is not how journalistic material came to be put into the Bill but why it is there. Those reasons make it inappropriate not only to take it out, as noble Lords wanted to do on the port tack, but to extend that protection to literary material, as they now propose to do on the starboard tack. Let me explain.
The Bill, as drafted, accords to journalistic material a specially protected status. It does not extend any special protection at all to journalists, as the noble Lord, Lord Hemingford, seemed to think that it did. It does not put them into a special category vis-à-vis ordinary citizens, as he put it, or vis-à-vis broadcasters or authors, as he has it in his amendment. If an ordinary citizen, or a broadcaster, or an author—if they are not ordinary citizens—has journalistic material, it is protected just as much as if a journalist has it. That is the merit of the Bill as it is now drafted, because it does not distinguish between different categories of people. It distinguishes only between different categories of written and recorded material.
The Bill extends this protection to journalistic material because, let me remind your Lordships. of the special importance to a free society of a press which is also free. An important part of that freedom is to embarrass powers established within that society by revealing information which those powers would rather see suppressed. Let noble Lords who most eloquently fear the arrival of some extremist government of either the Left or the Right reflect that the institution most at risk from such revelations is government itself. Let them further reflect how absolutely such a Government could dam up and suppress that liberating flow of information if they could turn the police on to identifying, rooting out and hounding down the sources from which it came. If serious arrestable offences were the open sesame to those sources, suspects of such offences could overnight become legion. The protection is in the Bill, as drafted, specifically to protect those sources. It is the function of the sources which entitles journalists to special protection. Not all the virtuous hysteria of the noble Lord, Lord Ardwick, faced with possible seduction, will persuade us otherwise.
If there were no sources to protect, we should not have journalistic material in the Bill, either as excluded material in Clause 11 or as special procedure 216 material in Clause 14. Indeed, it would not need to be in the Bill at all. It is not journalists whom we are protecting: it is their sources. The sources are the passport by which journalistic material comes into the Bill. But what is the passport by which the noble Lord, Lord Hemingford's new category of literature comes into the Bill? Whom does he wish to protect?
Literature, according to Amendment 28 to Clause 13, comprises broadcasting or authorship, not broadcasting or authorship for journalistic purposes because they are already in the Bill. The new words must import a new meaning. So this is the broadcasting of "Twelfth Night", "Crossroads", "Coronation Street", literature of the kind that wins, or tries to win, the Booker Prize, and even the graceful and illuminating letters of noble Lords, such as those written by the noble and learned Lord, Lord Denning. What nerve of democracy is there exposed so tender that it must have this altogether exceptional protection? What relationship is there established so sacred or so sensitive that the information which it generates or traffics in must, if it is held in confidence, be secret even from policemen hunting a killer, a rapist or a purveyor of the living death which goes by the name of heroin?
This amendment would vastly extend the areas from which the Bill would exclude police investigations altogether. It would vastly increase the areas to which the Bill only allows police investigators access on application to a circuit judge and it would do so with no justification whatever that I can see. I do not see why writing a book of romantic fiction should entitle one to refuse with impunity to divulge evidence to police investigating a serious crime. I do not think that Macmillans, Sidgwick and Jackson or Longmans need this kind of Mills and Boon amendment. If novelists are included, why not composers or painters? The answer is the same in every case. There is no special relationship and no special function in their work which warrants its exclusion from the ordinary functions of law and law enforcement. Without enforcement, the law is nothing.
The noble Lord proposes to place a very considerable handicap upon policemen doing a job of law enforcement which is very difficult already. Not infrequently, the speed with which they do that job is what determines how many victims a criminal can prey upon before he is caught. Whether they are murdered, raped or bankrupted, your Lordships can have no possible wish to increase their numbers. Therefore I ask your Lordships to reject this amendment without hesitation.
§ Lord Campbell of Alloway
My Lords, before my noble friend sits down, may I ask him, with leave, a short question? Does he remember saying at Second Reading that he would keep an open mind about the journalistic material issue, and would never foist it on journalists if they did not want it? Does my noble friend accept that at the Committee stage it was demonstrated that the journalists did not want it? In those circumstances, is he changing his stand, or does he stand by what he said?
§ Lord Elton
My Lords, my noble friend draws me back to a point from which I had departed. I do indeed remember the undertaking to listen to what was said. 217 But the terms in which I said it were that my right honourable friend was not disposed to change the present arrangement unless consensus could be demonstrated in the journalistic profession. When my noble friend says that the House demonstrated consensus, he forgets that I actually read out a number of authoritative opinions representing a large number of journalists of some seniority including, I recall, the Press Council but others as well, who did not support the view which he—and those of your Lordships who spoke in favour of that amendment—supported. I therefore have to say that, although we have listened for the consensus, there may have been a unanimity among those who addressed your Lordships' House but there is no apparent consensus in the profession; and that was the yardstick to which my right honourable friend attached his undertaking and in my view it has been fully honoured.
§ Lord Hemingford
My Lords, I do not intend to push these amendments. I think they have achieved a small part of their objective in providing the opportunity for the noble Lords, Lord Campbell of Alloway and Lord Ardwick, to say what they have said. I have to say that what the noble Lord the Minister has said is extremely disappointing. I think it is extraordinary if the Home Office read what was said at the Committee stage—and did not simply add up the number of people in the Chamber who spoke, which was itself impressive—and still came to the conclusion that there was no consensus within the Press against these amendments, and I can only say it is a very strange conclusion for them to have reached.
I think the other disappointment in what the noble Lord the Minister has said is that he persists with the nice point about journalists and journalism. It makes very little difference to the point that I was trying to make whether you use the word "journalist" or "journalism". It will be extremely damaging to the press, and much more damaging to a free press than any of the other assumed benefits that we shall get from this, if journalism is seen to be beholden to the authorities.
It is equally completely illogical, in my view, to provide special protection for material appearing in a newspaper which may admittedly embarrass the Government, and not provide the same protection for material appearing in a book which may embarrass the Government; and both articles may rely on confidential sources. There is no logic in that. I believe that the position in which we are leaving—
§ Lord Elton
My Lords, the point is that if the material in the book is journalistic material it will be protected. Perhaps I did not get that point over. If you are writing a book on current affairs and you produce journalistic material in it, then your sources are protected; the material is protected. That is the difference which perhaps has escaped the noble Lord.
§ Lord Hemingford
My Lords, the noble Lord the Minister has a different definition of journalism from mine. I think therein lies one of the great difficulties with which we are faced, because it seems to me that a book on current affairs would be very unlikely to be 218 described as journalism. I do not take the Minister's point on that at all. It seems to me that we have a very one-eyed view taken here.
When I described this as a "dead bat" perhaps I was flattering it unduly. But I am very unhappy with the situation and I sincerely hope that at the last gasp the Government will include in the review which they have undertaken to make of these clauses the very bad effect which the references to journalism are likely to have. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 22 to 31 not moved.]
§ Clause 16 [Execution of warrants]:
§ 6.27 p.m.
§ The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne)
moved Amendment No. 32:Page 14, line 32, leave out ("there are grounds for suspecting that").The noble Lord said: My Lords, subsection (4) introduces a new safeguard into the law governing the execution of search warrants. The subsection requires the warrant to be executed at a reasonable hour unless circumstances dictate otherwise. As I said in Committee on 5th July, it seems to the Government that the sensible test to apply to the actions of an officer charged with executing a warrant is not the objective test of reasonableness but rather the test of the bona fides of his beliefs. As I said then, we take this view for two reasons.
First, the situation is generally one of operational uncertainty in which it is very difficult for the police to know whether or not someone will be in. The police will generally err on the side of caution by executing the warrant earlier rather than later in the day for fear of tipping off the criminal if they arrive after he has already left.
Second, it would be unjust if a search was wholly successful, in the sense that the stolen goods were recovered, but rendered unlawful by the simple fact that the police could not prove that they had reasonable grounds for believing it necessary to search at an unreasonable hour. The police would be liable in damages, and that would be a result which I suggest does not accord with a common-sense view of the harm caused by waking a criminal from his bed.
We thought in Committee that the Bill as drafted had the effect that we intended. Now we are not so sure: it might, we think, be argued that the expression which this amendment seeks to omit implies something more than a bona fides test. I therefore ask your Lordships to agree this amendment, to put the matter beyond doubt. I beg to move.
§ Lord Mishcon
My Lords, I think your Lordships may agree that we are confronted by a rather unusual situation and one where we ought to be a little careful. It was the considered view of the Government, as argued at Committee stage, that the words in the Bill merely made it obligatory upon the police officer to have grounds for suspecting—and these are the words that we are dealing with—and that it was not necessary, and indeed was objectionable, to have the 219 word "reasonable" put there. There merely had to be grounds. There was an argument; the Government succeeded in that argument, and the Bill therefore reads that there have to be "grounds for suspecting".
Now the Government are coming back and saying, "We were wrong in the argument that we gave last time to the House". They are perfectly straightforward and one pays tribute to them for saying so. They say, "We were wrong in our argument". Indeed, merely saying there are grounds puts an onus upon the police in these circumstances. Are we to walk into the position where you cannot even say to a police officer who exercises these powers, "Please, what were your grounds?" and there is no right of action if he has no grounds that he can put forward at all. It must be right that the words that the Government stood by, and the words that originally appeared in this Bill and have gone through another place, should stand. For these reasons, we oppose this amendment and this alteration in the Government's own wording.
§ Lord Wigoder
My Lords, I should be grateful if the noble Lord the Minister would explain to me what I did not follow from his observations. If the words.unless it appears to the constablewill remain in, as they do on either case, then it is purely a subjective test so far as the constable is concerned, is it not? It is, then, a question of what appears to the constable. For the life of me, I cannot see any difference between the test proposed in the clause as it stands:unless it appears to the constable … that there are grounds for suspecting that the purpose of a search may be frustrated",and the new proposal,unless it appears to the constable … that the purpose of a search may be frustrated".It seems to me that they mean exactly the same thing and that the words the Government are seeking to remove are simply surplusage. If they are simply surplusage, let us by all means remove them.
§ Lord Renton
My Lords, I should have thought that the noble Lord, Lord Wigoder, had got this right. It seems to me that the word "appears" must mean and must be interpreted as meaning, as appears reasonable on any objective criteria. It seems to me that that is the same as saying,there are grounds for suspecting".and that the words which it is proposed to leave out are quite unnecessary.
§ Lord Trefgarne
My Lords, may I then say first, in answer to the noble Lord, Lord Mishcon, that I believe the constable can still be asked—even if this amendment is carried, as I hope it will be—why it appears to him that the purpose of the search might be frustrated if he were to follow some other course of action. I do not believe that the effect of the amendment would be to exempt the constable from 220 the subsequent scrutiny of his actions, as the noble Lord, Lord Mishcon, may have feared.
In answer to the noble Lord, Lord Wigoder, I must say that the change I am proposing is not of the depth which he suggests. It is a modest improvement to what is already in the Bill, and therefore I hope that your Lordships will feel able to agree to it.
§ Lord Mishcon
My Lords, before the noble Lord the Minister sits down, can he say where we stand on the advice given to the Government? The noble Lord, Lord Wigoder, whose views I always respect, said—as did the noble Lord, Lord Renton—that these words mean nothing. The Government have obviously been advised that these words mean something, otherwise they would not take the trouble to put an amendment before the House to have these words removed. The Minister was absolutely frank with the House. He said that these words cast a duty upon the officer which he wants to remove; the duty of having to give some kind of grounds.
If the advice which the Government have received is meaningful and is right, my point stands; that is, that we are taking away a protection and the requirement that there be grounds. Or will the noble Lord the Minister yield and say that on consideration he thinks that the advice he has received is wrong?—because the noble Lord, Lord Renton, the noble Lord, Lord Wigoder, and the Minister cannot all be right. The view of the noble Lords, Lord Renton and Lord Wigoder, is, as I have said, that these words mean nothing—and the view of the Government is that they mean something and that they are therefore to be removed. I oppose this amendment. I believe that the Government have been correctly advised.
§ Lord Trefgarne
My Lords, there are two considerations I would put to your Lordships. Either the words are indeed superflous, as the Government now believe, and in which case the amendment is appropriate; or else the words do imply a reasonableness test, in which case the unlooked consequences which would flow from that test remaining in the Bill will follow, and it is right therefore to agree to the amendment.
When I moved the amendment a few moments ago I explained the undesirable effects which this clause as presently drafted would have. This amendment would remove those undesirable effects, and again I say that I hope your Lordships will agree to it.
§ Clause 18 [Entry and search after arrest]:
§ Lord Elton moved Amendment No. 33:
§ [Printed earlier.]
§ The noble Lord said: My Lords, this amendment is consequential on Amendment No. 16. I beg to move.
§ Clause 19 [Seizure of articles]:
Lord Trefgarne moved Amendment No. 34:
Page 18, line 3, leave out from ("is") to end of line 8 and insert ("lawfully on any premises.")
§ The noble Lord said: My Lords, this amendment has two purposes. First, it simplifies the drafting of subsection (1). Secondly, it ensures that the powers of seizure conferred by Clause 19 are not artificially limited. Let us suppose that a police officer is on certain premises, not to carry out a search but simply to interview someone. In the course of the interview he notices in the room something which he has reasonable grounds for suspecting constitutes evidence of crime or which has been unlawfully obtained.
§ Under the clause as drafted he would not have the power to seize it because subsection (1) would not apply. Under our amendment he would be so empowered provided, of course, that the requirements of subsections (4) and (5) are satisfied. I invite your Lordships to agree that this is no more than common sense and indeed in accordance with the present common law. I beg to move.
§ Lord Elton moved Amendment No. 35:
§ [Printed earlier: col. 201.]
§ The noble Lord said: My Lords, this amendment is consequential on Amendment No. 16. I beg to move.
§ Lord Trefgarne moved Amendments Nos. 36 and 37 en bloc.
§ [Printed earlier: col. 201.]
The noble Lord said: My Lords, I should like to move Amendments Nos. 36 and 37 en bloc and speak at the same time to Amendments Nos. 53, 55, 67, 69, 71, 101, 107 and 108.
Amendment No. 53: Clause 21, page 20, line 11, leave out ("an article") and insert ("anything").
Amendment No. 55: Page 20, line 15, leave out ("An article may not") and insert ("Nothing may").
Amendment No. 67: Clause 31, page 26, line 31, leave out ("any article") and insert ("anything").
Amendment No. 69: Page 27, line 2, leave out ("article or") and insert ("thing or any such").
Amendment No. 71: page 27, line 6, leave out ("an article") and insert ("anything").
Amendment No. 101: Clause 54, page 51, line 6, leave out ("an article") and insert ("anything").
Amendment No. 107: Page 51, line 32, leave out ("any article") and insert ("anything").
Amendment No. 108: Page 52, line 1, leave out ("property") and insert ("anything").
§ These are all drafting amendments which secure consistency of terminology within the Bill. At present, some provisions use the term "article", others "property", and others, "anything". We believe that this last expression is to be preferred since it covers such things as fingerprints which are not, properly speaking, articles at all. I beg to move.
§ Lord Elton moved Amendments Nos. 38, 39 and 40:
§ [Printed earlier: col. 201.]
§ The noble Lord said: My Lords, Amendments Nos. 38, 39 and 40 are all consequential on Amendment No. 16. I beg to move.222
Lord Trefgarne moved Amendment No. 41:
Page 19, line 1, leave out subsections (7) and (8).
The noble Lord said: My Lords, I will speak at the same time to Amendment No. 43:
Amendment No. 43: Clause 20, page 19, line 10, at beginning insert—
("( ) A constable who seizes anything in the exercise of a power conferred by any enactment, including an enactment contained in an Act passed after this Act, shall, if so requested by a person showing himself—
- (a) to be the occupier of premises on which it was seized; or
- (b) to have had custody or control of it immediately before the seizure,
provide that person with a record of what he seized.
( ) The officer shall provide the record within a reasonable time from the making of the request for it.").
§ These drafting amendments transfer subsections (7) and (8) of Clause 19 to Clause 20, where they more naturally belong. The slight changes of wording are consequential on the redefinition of the scope of Clause 19, to which I have already spoken. I beg to move.
§ Lord Elton moved Amendment No. 42:
§ [Printed earlier: col. 201.]
§ The noble Lord said: My Lords, this amendment, again, is consequential on Amendment No. 16. I beg to move.
§ Lord Mishcon
My Lords, will the noble Lord the Minister be good enough to clarify subsection (2)(c) of his new clause and explain to the House what the reference is to paragraph 12A of Schedule 1 and how it all fits into this clause? The rest of the clause is unexceptionable but I am not sure that I can follow subsection (2)(c) and its reference to Schedule 1.
§ Lord Elton
My Lords, if the noble Lord will look at the amendment to Schedule 1, in paragraph 12 he will find the words added:12A. A constable may seize and retain anything for which a search has been authorised under paragraph 12 above".What I am seeking to do, as I speak, is to locate the number of that amendment in the group. It is Amendment No. 180, which is the last one in the group.
§ Clause 20 [Seized articles: access and copying]:
§ Lord Trefgarne moved Amendment No. 43:
§ [Printed earlier: col. 222.]
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 41. I beg to move.
§ Lord Elton moved Amendment Nos. 44 to 49:
§ [Printed earlier: col. 201.]
§ The noble Lord said: My Lords, these go with Amendment No. 16; by "these" I mean Amendments Nos. 44 to 49 inclusive. Therefore, I beg to move these en bloc.223
§ 6.42 p.m.
Lord Trefgarne moved Amendment No. 50:
Page 19, line 41, leave out ("prejudice the investigation") and insert ("prejudice—
§ The noble Lord said: My Lords, Clause 20(3)(b) disapplies the duty on the police to grant access to, or supply a photograph or copy of, a seized article where there are reasonable grounds for believing that to do so would prejudice the investigation in the course of which it was seized. This amendment reflects our belated realisation that it is just as important to avoid prejudicing other investigations in progress, or criminal proceedings. In the case of, for example, a set of company frauds it may be necessary to safeguard the investigation of related or similar offences thought to have been committed by associates of the immediate suspect. I think that the case for the amendment is self-explanatory. I beg to move.
§ Lord Mishcon
My Lords, this is obviously an extension, a widening, of what was previously in the Bill. One does not necessarily want to oppose it on that account. However, in view of the fact that this means that the police are being given further powers, as it were, to refuse information or documents, copy documents, and so on, will the noble Lord the Minister give to the House an assurance that these matters will be regulated in the code of conduct, in order that the police may not unreasonably rely upon these widened powers?
§ Lord Trefgarne
My Lords, I have a feeling that I am free to give that assurance; in fact, I now find that I am, and I am happy to do so.
§ Clause 21 [Retention of seized articles]:
§ Lord Elton moved Amendments Nos. 51 and 52:
§ [Printed earlier: col. 201.]
§ The noble Lord said: My Lords, this amendment, and Amendment No. 52, are consequential upon Amendment No. 16. I beg to move.
§ Lord Trefgarne moved Amendment No. 53:
§ [Printed earlier: col. 221.]
§ The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 36. I beg to move.
§ Lord Elton moved Amendment No. 54:
Page 20, line 14, at end insert—
("(2A) Nothing seized on the ground that it may be used—
The noble Lord said: My Lords, in moving Amendment No. 54, with your Lordships' leave I shall speak also to Amendments Nos. 73, 99 and 109.
Amendment No. 73: Clause 31, page 27, line 34, leave out subsections (9) and (10).
Amendment No. 99: Clause 53, page 50, line 36, leave out subsections (9) and (10).
Amendment No. 109: Clause 54, page 52, line 4, leave out subsections (11) and (12).
§ These are drafting amendments which simplify the Bill. They are made possible by the redefinition of the scope of Clause 19, to which I have already spoken. The new subsection (2A) which we propose should be added to Clause 21 repeats and replaces what is now said, rather cumbersomely, in Clause 31(9) and (10), Clause 53(9) and (10) and Clause 54(11) and (12). In view of your Lordships' understandable anxiety for simplification, I hope that you will be happy with these amendments. I beg to move.
§ Lord Trefgarne moved Amendment No. 55:
§ [Printed earlier: col. 221.]
§ The noble Lord said: My Lords, again, this amendment is consequential on Amendment No. 36. I beg to move.
§ Clause 23 [Arrest without warrant for arrestable offences]:
Lord Foot moved Amendment No. 56:
Page 20, line 35. leave out from beginning to end of line 3 on page 21 and insert ("to offences which are punishable by imprisonment.").
The noble Lord said: My Lords, the three amendments which stand in the name of myself and the noble Lord. Lord Renton, run together and I hope it will be convenient for them all to be discussed at the same time.
Amendment No. 57: Page 21. line 5, leave out subsection (2).
Amendment No. 58: Page 21. line 23. leave out subsection (3).
§ We now pass from Part II of the Bill to Part III and the important matter of arrest. The amendments that I have put down refer back to something that was a matter of discussion in Committee, but I now regret that I did not bring forward these amendments at that time because there would then have been a greater opportunity of their being considered by the Government than is the case at this rather late stage. I believe, and submit, that these amendments raise a matter of some significance, and I hope that even at this late stage the Government will be prepared to consider what I believe are important arguments which arise.
§ The object of the amendments is to amend the first three subsections of Clause 23. The three subsections define the arrestable offence; that is, the offence for which an arrest can be made without a warrant. The definition of an arrestable offence in the three subsections divides itself into three parts. First, in subsection (1), an arrestable offence is an offence for 225 which there can be imposed a penalty of five years imprisonment or more. In subsection (2) a number of statutes are referred to and the Bill makes the offences under those statutes arrestable offences, although the penalties attached to them under existing law do not amount to as much as five years. Finally, under subsection (3) there is provision that, where any of the offences referred to in subsection (2) are concerned. attempting to commit such an offence or counselling such an offence, or activities of that kind, shall be arrestable offences, too.
My amendments seek to strike out practically the whole of that—that is, strike out subsections (1), (2) and (3)—and put in their place the simple definition that arrestable offences shall be.
offences which are punishable by imprisonment".
§ That proposal has at any rate, perhaps the Government will grant, the merit of simplicity. But I think it has much more merit than mere simplicity. I believe it also involves an important matter of principle.
§ In putting these amendments forward I derive some considerable confidence by reason of two particular considerations. The first relates to the Criminal Justice (Scotland) Act 1980. At the Committee stage I took leave on one or two occasions to refer to the Scottish Act of 1980 because it has some interesting parallels with what we are doing in this Bill. What I pointed out at that time was that in the 1980 Act Scottish law has adopted the principle for which I am pleading; that is, that the test of an arrestable offence shall be simply whether it is an offence punishable by imprisonment. That is set out in Section 2 of the Scottish Act of 1980.
§ I played some small part in the debates which took place on the Scottish Bill in 1980. So far as I remember, nobody at that time queried the propriety of making the arrestable—or as it is in Scottish Law, detainable—offence dependent upon whether it was punishable by imprisonment. So far as I remember it was the universal view of the House on all sides that that was the proper standard to adopt. There was never any suggestion at that stage that there ought to be a criterion of five years' imprisonment, or anything of that kind. That is the first reason why I derive assistance and encouragement from the Scottish Act.
§ The perhaps more important consideration in this House is that the Philips Royal Commission, by a majority (if I have it right) of 13 to three, came to precisely the same conclusion, and it, too, recommended that for the future the test of an arrestable offence should be simply whether it was an offence punishable by imprisonment.
§ The question arises—does it not?—why it is that the Government have decided to bring in a clause in a Bill which is in conflict with everything that was recommended by the Thomson Commission in Scotland, with the test that was set down in the Scottish Act and with the recommendation of the Royal Commission in England and Wales? Why have the Government departed from those recommendations and sought to maintain the standard and criterion of five years' imprisonment?
§ The occasion when the five-year criterion was introduced into our criminal law was the Criminal 226 Law Act 1967. As the noble and learned Lord, Lord Denning, explained to us at the Committee stage of this Bill, the reason that the five-year criterion was adopted was simply this. Prior to the 1967 Act there had been the distinction in English law for a very long time between a felony and a misdemeanour. It was decided and provided in the 1967 Act that that distinction should be eliminated and that there should no longer be felonies and misdemeanours.
Apparently it was considered at that time that if the common law power of arrest for a felony—because there was and had been for many years the common law power to arrest without warrant for a felony—was to be abolished, should not something be put in its place. The device that was lit upon at that time was to create a statutory power of arrest without a warrant; but in order presumably that it should apply only to fairly serious offences, it was decided to provide that the new statutory power should be exercisable only if a person was involved in an offence which incurred five years' imprisonment.
§ That decision has given rise to all kinds of difficulties. First of all, the period of five years is purely arbitrary. There is no reason or rationale behind it. Two, seven or 10 years might just as well have been picked on. If any particular period of time is picked, it is a purely arbitrary decision. It has given rise to all kinds of anomalies.
§ One of them is this. When the five-year criterion was picked upon, presumably the intention was that the power of arrest without a warrant should be available only in serious matters and should not be available in trivial ones. But to use the test of the period of imprisonment which attaches to an offence does not necessarily tell one whether the offence with which one is dealing is serious or trivial. The maximum penalty for theft is 10 years' imprisonment, but, as everybody knows, one can have the wildest variation in seriousness between one kind of theft and another. At the bottom of the scale there may be the theft of a milk bottle from a doorstep and at the top the armed robbery of a bank. If it was the intention to try to fix a scale by which to test the seriousness or otherwise of the offence, that broke down.
§ Another anomaly of the situation was that the test of five years' imprisonment attaching to the offence failed to include offences which everybody would agree ought to involve arrest without a warrant. The whole of subsection (2) of this Bill is an acknowledgement of the fact that the five-year period is inadequate as a test. What is included in subsection (2) are five statutes where the period of imprisonment attaching to the offences concerned does not amount to five years but where it has been considered by the Government that it is proper—indeed, essential—that there should be the power of arrest without warrant.
§ Not only is the five-year rule full of anomalies but it also gives rise to a great number of practical difficulties. Let us consider for a moment what the police constable on the beat has to have in mind when he is considering his rights and his powers to make an arrest without a warrant. He is supposed to know, for example, first of all, of all the criminal offences in the criminal calendar, which of them involve a period of imprisonment of five years or more. He has to know that without any opportunity of consulting the 227 authorities and looking it up. because in the nature of things, if he is arresting somebody without a warrant, he is doing something in an emergency and without notice. If he can arrest somebody at his leisure, and there is no hurry about it. he can go to a magistrate and get a warrant; but if he is arresting without a warrant, almost by definition, he is acting in a semi-emergency and at short notice.
§ Is it at all reasonable to ask the ordinary policeman on the beat to be familiar with all the criminal statutes of the country to the extent of knowing which of them provide for offences incurring more than five years' imprisonment and which do not? I would venture to say that the ordinary criminal practitioner—the man who is dealing with such matters every day of the week—would have great difficulty in telling your Lordships which of the various statutes involve that five-year imprisonment condition.
§ The other matter that the police officer on the beat has to have in mind is the terms of subsection (2). That is the subsection which sets out these various sets of offences which do not carry the five-year penalty but which the Government consider ought to be included because of the importance of the police officer in those cases having the right to arrest without a warrant. He has to be familiar with that. One has only to look at the nature of those statutes to see the complication of that.
§ In addition to all that, the police officer on the beat has to know all the existing statutes which give a statutory right of arrest without a warrant. Those are to be found in Schedule 2 to the Bill. There are there set out all the existing statutes under which there is a power of arrest without a warrant. On my calculation, there are no fewer than 20 statutes which the police officer has to understand and have in mind.
§ The Royal Commission's decision and recommendation on this matter was unequivocal. They made it perfectly plain that they came to the conclusion that they thought that the five-year criterion and all the other suggestions that had been made would not do and that the only criterion which would do would be that of the offence being punishable by imprisonment.
§ Why is it that the Government have rejected the recommendation of the Thomson Committee, the law as it is in Scotland—which was promoted by the predecessor of this Government, by a Tory Government, and not by anybody else? Why is it that the Government have rejected the very positive recommendations of the Royal Commission and returned to the old five-year rule which was incorporated in the 1967 Act?
The only clue that I can find for the Government's decision is contained in the guide. So far as I can understand it, this is the only comment upon this matter that the Government have made in this publication. They say this:
The Government has rejected as too sweeping the proposal that all imprisonable offences should become arrestable offences".
§ With that single sentence they dismiss all the advice that has been given to them by both the committee and the commission, and they give no further explanation.
§ I say in passing that, if that is right and it is too sweeping to give these powers to a policeman, then of 228 course they have it all wrong in Scotland and they suffer under that disability to this day. However, that will not really do because the Royal Commission themselves considered this very argument that it would be dangerous to extend that far the power of arrest without warrant. They considered it in detail and, by a large majority, came to the conclusion that there was no virtue in the argument; that there was no risk, as they saw it. of this leading to a greater number of arrests. They came to the conclusion that there was indeed every reason to suppose that the number of arrests might be reduced, provided that what they called the principle of necessity was adopted.
§ I will not weary the House with reading out the paragraph in the report, but in effect what they said was this: "We think that for the future, when you come to consider arrest without a warrant there are two matters that you have to have in mind; there are two matters that have to he satisfied. First of all, the arrest must be lawful within the terms of the law". But, having said that, they went on to say. "Not only that. but we believe that it must be further demonstrated that the arrest was not only lawful but necessary".
In their report they have set out what they regard as the conditions which have to be satisfied in order to show that it was indeed necessary to make the arrest in the first place. What they said was,
We do not believe that it is possible or reasonable to expect the policeman on the beat to consider all these reasons of necessity which we think should be observed, but we do think that they should be observed at the moment when the arresting policeman brings a suspect into the police station".
§ They said that it is at that stage that, not the arresting policeman but some other police officer should then look at the arrest, ask for the reasons for it and himself decide not only whether it was lawful but whether it was necessary. They said that if that principle was observed and was written into the law they believed that the net result would he a reduction in the number of arrests rather than an increase.
§ All that is argued out in the report of the Royal Commission. All of it. apparently, has been ignored by the Government in introducing this clause in the way that they have. The Royal Commission therefore have not accepted the argument which has been advanced by the Government in their guide. As I said at the beginning, it is a matter of regret to me that I did not raise this matter at an earlier stage because, in view of the fact that all authoritative opinion is on my side and none of it is on the side of the Government, I think it is right that this matter should be considered with some care.
§ If I may sum the matter up, the effect of my amendment is simply this. It is to strike out the first three subsections of this clause and to substitute for it the simple criterion that an arrestable offence shall be any offence for which the punishment is imprisonment. I beg to move.
§ Lord Renton
My Lords, I wish very warmly to support the, in my opinion, very strong case which has been put forward by the noble Lord, Lord Foot. We owe him a debt for having raised this matter on clause stand part at Committee stage and for all the trouble he has taken again today. May I say, in passing, that the noble and learned Lord. Lord Denning, wished to 229 support this amendment but asked me to say that he has had to leave in order to attend a long-standing public engagement.
I think that it may not be fully appreciated how very complicated in their application the provisions which are proposed by the Government will turn out to be. May I very slightly amplify what the noble Lord, Lord Foot, said about them. It comes to this. A police officer really will have to have a most comprehensive knowledge of the law in order to find out whether the offence is arrestable. Under subsection (1)(b), this provision that it should be an offence for which a person over 21 could be sentenced to a term of five years or more in itself would require a very great deal of research followed by police training. There is a qualification of it which certainly complicates the matter because the words are added:(or might be so sentenced but for the restrictions imposed by section 33 of the Magistrates' Courts Act 1980)".One is grateful to the Government for making available to us the Notes on Clauses for this Bill. However, when one studies them, one finds that the true position is even more complex than that stated in the Bill itself. As to the provision in the Magistrates' Courts Act, it comes to this—that for the words in the Bill one should read:or which would carry such a liabilitythat is to five years' imprisonment or more—were it not for the requirement of summary trial imposed by section 33 of the Magistrates' Courts Act".The problem of understanding the application of the clause does not end there. When we turn to subsection (2), the matter is frankly over-simplified. Paragraph (a) of subsection (2) deals with offences for which a person may be arrested under customs and excise Acts as defined in the 1979 Act. We find that the offences that are included number no fewer than 20 offences mentioned in the Customs and Excise Management Act 1979. And they are not all the offences mentioned in the Act. They are only some of the more important ones. It is fair to say that the offences that are mentioned are already punishable by imprisonment. That is if course consistent with what the noble Lord, Lord Foot, has proposed.
One could, by referring to the Notes on Clauses, amplify each of these statements. However, at this hour, I do not think that your Lordships would wish me to do so. I would nevertheless ask you either to turn up the Notes on Clauses or take it from me that in every single one of them there is an amplification. I should perhaps refer to the last of them in paragraph (e). There, the Notes on Clauses refer to offences under Section 1 of the Public Bodies Corrupt Practices Act 1889 (corruption in office) and Section 1 of the Prevention of Corruption Act 1906 (corrupt transactions with agents). It is pointed out that corruption involving a public contract is already an arrestable offence, but as the maximum penalty for other corruption offences is two years, they are not at present arrestable. Then it refers to the need to strengthen the law.
I should like to refer to the point which naturally should cause some concern to your Lordships, mentioned by the noble Lord, Lord Foot, namely, that, instead of being selective, in however 230 complicated a way, we are, by applying generally the Scottish maxim that it is the arrestable offence that is the test, extending greatly the range of arrestable offences. There is surely a simple answer to that. It is that a very high proportion of the offences for which a person over 21 may be sentenced to imprisonment for five years or more carry terms of imprisonment already. So it could he said that the Bill is already creating a considerable extension and that to simplify it and to say it shall apply to all offences punishable with imprisonment would not be such a very great further extension.
On this question of the police, I should disclose that I have been approached both by the Police Federation (with whom I have been in touch for some years) and by the chief officers of police on the Bill generally. I have received, I believe, all their briefing material. I should also disclose that they have made no complaint in any of that briefing material about these provisions. But, if they were given the choice of the provisions in the Bill or the much more simple provision proposed by the noble Lord, Lord Foot, they would leap for joy. They would be delighted, and those responsible for police training would realise that they had a much easier task. Not all police officers, even these days, are as well educated as they might wish to be.
There is a further point. The crime wave continues each year. Although we do not want to turn this country into a police state or anything like it, we must make sure that the police have adequate powers to deal with the crime wave, that they know exactly what powers they have and that they have no doubt about whether they can use them. Applying that test, it is surely better that we should go along with the Scots.
§ Lord Campbell of Alloway
My Lords, I support the amendment in the hope that this problem of the definition of arrestable offence may be taken back and reconsidered with other matters before Third Reading. This amendment removes three subsections and a mass of complexity which, although on this occasion, intelligible, is apt to confuse a constable, is apt to inhibit him in the due exercise of his duties, as my noble friend Lord Renton has pointed out, and is also apt to expose him to charges of false arrest. Clause 23 as it stands is complex for the sheer sake and joy of complexity. There is no merit and no justification for arbitrary and anomalous provisions that create practical difficulties to which reference has already been made. A simple test to assess the gravity of an offence in an emergency is what is on the cards. That is what is needed. You can do it either by saying "offences triable on indictment" or you can do it by saying, as this amendment proposes, "punishable by imprisonment". Let us accept that this amendment reflects a position that operates in Scotland. It operates without any trouble. It operates in a wholly satisfactory fashion. It causes no confusion, no injustice and no inhibition of constables in the exercise of their duties. It is far simpler and far more workable than Clause 23 as it stands.
§ Lord Wigoder
My Lords, I should like to support the argument put forward by my noble friend Lord Foot, first, because it simplifies very much an extremely complicated arrangement as set out in the 231 Bill; and, secondly, because I strongly suspect that, in practice, it will work out not entirely dissimilarly from the way that the Bill is set out. So far as I can see at a quick glance all the specific offences referred to in Clause 23 are offences that are punishable by imprisonment. There may be the odd one that is not; but so far as I can see, all of them are. If that is so, the only question is whether this proposed simplification will sweep in a large number of other offences which it is undesirable should be swept in. I suspect that in practical terms the powers of summary arrest will be very similar under my noble friend's amendment to those set out in the Bill but very much simpler for everyone to follow.
Having said that, I should like to raise one slightly complicating factor which perhaps my noble friend in particular might care to consider at some stage. possibly between now and Third Reading. If I remember correctly, there are still a limited number of offences which are punishable by imprisonment on a second or third or subsequent conviction, but not on first conviction. I rather think that certain types of soliciting still come within that category. If that is so, it is going slightly to confuse the issue. I think that, as it stands, it will mean that the officer would have to know, in relation to those offences, whether or not the person he was arresting had committed an offence previously. My noble friend might like to consider whether his amendment ought not to be marginally improved so that it read.offences which are punishable by imprisonment on a first conviction".I see that the noble Lord, Lord Renton, wishes to speak. I give way at once.
§ Lord Renton
My Lords, would the noble Lord agree that the important point he has made would apply as much to the Bill as it stands as it would if the amendment were made?
§ Lord Wigoder
My Lords, I am not sure about that. I rather doubt whether there are any offences in the Bill as it stands which are offences that are punishable by imprisonment only on a second or subsequent conviction. I am not sure about that. but I do not think there are. What I was going to suggest to my noble friend Lord Foot, if he wishes to press this amendment either today or at a subsequent stage, is that, if his amendment read,offences which are punishable by imprisonment on a first conviction",it would avoid the difficulties to which I have ventured to give voice. Subject to that minor modification, I also should like to support this amendment.
§ 7.22 p.m.
§ Lord Elton
My Lords, I watched with interest the to-ing and fro-ing between the Liberal and the Labour Front Benches and wondered whether the noble Liberal spokesmen were trying to seduce the noble Labour spokesmen into vastly extending the powers of arrest in the Bill.
§ Lord Elton
My Lords, I am sure the noble Lord would look so extraordinary in a fur coat that he would never think of accepting one.
232 These amendments would dramatically simplify the Bill and allow the law on arrest to be readily understood by the police and the public alike: and I do indeed see the attractions of both these effects. But the price to be paid for this would be extremely high. There are on the statute book very many offences which are punishable by a term of imprisonment of less than five years, and under these amendments they would cease to be subject to Clause 4 and would instead become arrestable offences under Clause 23.
The noble Lord. Lord Foot, compared what is here proposed with what is now the case in Scotland. The fact is that he appears to me to be looking at only half of the equation that one should look at on this occasion. In Committee, he was first to remind us that the power of detention without charge which we propose for the English and Welsh police is very much greater than is the case in Scotland. It must be the case (must it not?) that the more generous we are to the police in the power which we give them in terms of length of detention without charge, the more careful we must be in giving them powers of arrest—bringing people under that potentiality. Our detention powers are greater than those of the Scots and our arrest powers must therefore be given with a matching and proper restraint.
I am sure that the noble Lord will remind us on a later amendment that the Scots are limited to a period of six hours for detention before charge. Our own constables are free at present to keep people locked up without any limit at all in time before they charge them. We now propose to bring this down to 96 hours, which is 16 times longer than is the case in Scotland. So let us bear that in mind when we compare our law with the Scots', without further pursuing the differences between the two systems.
Before I go on to consider what will follow from the amendment, I should tell your Lordships that in 1966 a working party considered in depth the question of the possibility of a two-year test as opposed to a five-year test. The working party, whose report was not published, was made up of officials and chief police officers. They were initially attracted by the idea of the two-year test but concluded that this would confer unacceptably wide powers on the police; so much the more so. therefore, in the case of a rule of the kind now proposed.
Let us now consider what would follow from the amendment. For example. take the case of gaming in the street. This is an imprisonable offence and, therefore, would become an arrestable offence under these amendments. The effect would be that a police officer could arrest a person on reasonable suspicion of having committed an offence, even though the offence might have been committed many months previously and even though it would be perfectly possible and appropriate to prosecute by way of a summons. Upon his arrest, the person's premises could be searched for evidence of the offence, under Clause 18.
I suggest to your Lordships that this is not a satisfactory way of enforcing the law. It is much better that such offences should be dealt with under Clause 24, so that prosecution is by way of summons, unless an immediate arrest is necessary. Arrest is the most coercive power of all and it should not be available for 233 the police as a matter of discretion, except in the case of the more serious offences.
The five-year test has nothing to do historically with seriousness. It derived from the abolition in 1967 of the distinction between felonies and misdemeanours, to which the noble Lord, Lord Foot, referred. There was a power of arrest for felonies, and the Criminal Law Act 1967 simply preserved this. The five-year test was a convenient rule of thumb recommended at the time by the Criminal Law Revision Committee. But, in fact, on the whole it has worked well in practice, subject to one or two anomalies which are corrected in subsection (2). But, more to the point, the police are now thoroughly familiar with the test and, if the amendment succeeded, would need to unlearn it and to learn something quite different, and I do not see that that is something which would lead them to jump for joy.
The present test works reasonably well in practice, as I say, as a criterion for arrestability, and the number of five-year-plus offences is very small relative to the number of imprisonable offences. Therefore, the test of memory is less. Some of the imprisonable offences are often indistinguishable from non-imprisonable offences when it comes to questions of gravity. We do not believe that the Royal Commission made out a sufficient case for relaxing that test, and therefore we rejected the commission's recommendations as conferring powers of arrest which would be more sweeping than were needed and which would jeopardise relations between police and community. That, let us remember, is a principal purpose that we are seeking: to strengthen the relations between the police and the community.
The police are content with Clause 23—specifically so, in the case of the chief constables. My noble friend was kind enough to say that he had received no complaint from that quarter. I think that that really is a sufficient answer to the point he has made, that what we propose is too complex. In fact, it will not amount to anything more complex than what is now the familiar ground on which the police always stand—
§ Lord Renton
My Lords, before the noble Lord sits down, would he mention how they get on in Scotland?
§ Lord Elton
My Lords, I expect they get on very well in Scotland; but the fact is that we are considering the statute book of England and the powers in England. I sought to show your Lordships that the effects of being arrested in England are quite different from the effects of being arrested in Scotland. That is why I do not think the comparisons are valid.
§ Lord Foot
My Lords, let me say at once that I have not got that degree of support that I might have hoped for, and therefore I am not going to carry this matter to a Division. But I would still invite the noble Lord to consider, if he will, the arguments which have been advanced. Probably the best thing I can do, in endeavouring to give a brief answer to what the noble Lord has said, is to quote to him the conclusions which were arrived at by the majority of the Royal Commission. Their words are very much more potent than any that I could use. They did not accept the argument of the noble Lord that this amendment would. in fact, increase the number of arrests for 234 offences without a warrant. I should like to read to the House the major paragraph where they came to their conclusion:The majority of us considers however—and the word "however" refers to the argument about five years' imprisonment—that the need to place the existing powers on a consistent and rational footing cannot he ignored. Their approach is based upon the following considerations. Parliament has established as the criterion of seriousness of offence for arrest on warrant that the offence is either indictable or imprisonable. The power of arrest without warrant is required to deal with situations where it would not he practicable or reasonable to require a warrant to be obtained. But the purposes for which arrest is used, whether on warrant or not, and to which we have referred in paragraph 3.65, are the same. Accordingly the same criterion of seriousness of offence can and should apply to both types of arrest, with the exception that the police should not as a general rule have a power to arrest without warrant for offences which do not carry the penalty of imprisonment. The majority of us, therefore, proposes that an arrestable offence for the purposes of any arrest without warrant should be defined as an offence which is punishable with imprisonment".On the matter as to whether this would lead to a multiplicity of arrests on the streets, the commission was equally clear. May I say in passing that if I had thought that the effect of my amendment would be to increase the number of arrests, I should certainly have hesitated long before I put these forward amendments. But I was persuaded by the argument as it was put by the commission.
At paragraph 3.83 they say this:Those of us who take this position"—that is, the position of favouring the punishable-by-imprisonment principle—do not think that redefinition of the arrestable offence in this way will in practice result in an increase in the total number of arrests. Rather they believe that the restrictions upon arrest and detention upon arrest proposed in paragraph 3.76 are such as to ensure that arrest will be less frequently and widely used even if the definition of arrestable offence is widened".That is not a conclusion to which a few people jumped after half an hour's consideration. This was a conclusion reached after a closely-argued case, as is contained in the report, and that was the settled conviction of the commission. I must say that I prefer that conclusion and I prefer to rely upon the authority of the commission than the arguments that have been used by the noble Lord.
Is it not rather striking that the noble Lord, in endeavouring to find somebody to support him, should not have looked to the Royal Commission, which sat for a period of some five years considering this matter, but referred us back to some inquiry which took place in 1966? If that is the only authority to which the noble Lord can look does he not have a rather slender case? As I say, I do not propose to take this matter to a Division, but I still hope that the noble Lord might be prepared to look at the matter again before we reach the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Trumpington
My Lords, it will probably be for the convenience of the House if I beg to move that further consideration on Report be now adjourned until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.